The Executive
John N. Lee
Florida State University
Summer 2010
John N. Lee (Florida State University)
The Executive
Summer 2010
1 / 20
Evolution of the Presidential Election System:
Originally Vice President was the candidate who received the second
highest number of electoral votes.
1796: John Adams is elected President and Thomas Jefferson is
elected Vice President. First time VP and President were from
different parties.
Twelfth Amendment: Separates the offices of Vice President and
President. Both received individual votes.
John N. Lee (Florida State University)
The Executive
Summer 2010
2 / 20
Qualifications to be President:
1
President must be a natural born citizen.
2
President must be thirty five years old.
3
President must have been resident of United States for fourteen years.
John N. Lee (Florida State University)
The Executive
Summer 2010
3 / 20
Electoral College:
Designed to allow general electorate to have some say in choice of
President but not actual choice.
States usually have popular elections to determine which way their
electoral college members should vote.
President does not need to win the most popular votes, just the most
electoral votes (e.g. Bush/Gore 2000).
John N. Lee (Florida State University)
The Executive
Summer 2010
4 / 20
Removal By Impeachment:
Two-Stage Process
House of Representatives investigates charges against the President. If
convinced of sufficient evidence Congress passes Articles of
Impeachment authorizing impeachment trial by Senate.
Trial takes place in Senate where chief justice presides. Conviction
requires two-thirds of the voting senators.
Congress can only remove President from power no other penalties
may be imposed.
Congress has never removed a President from power.
John N. Lee (Florida State University)
The Executive
Summer 2010
5 / 20
Term Length and Limit
Terms are four years long.
Term limit is two terms.
Twenty-third Amendment: President may not serve more than two
terms or six years in office.
John N. Lee (Florida State University)
The Executive
Summer 2010
6 / 20
Executive Power
The President has the power to:
“make treaties, provided two thirds of the Senators present concur.”
“nominate, and by and with the Advice and Consent of the Senate,
shall appoint Ambassadors, other public Ministers and Consuls, Judges
of the supreme Court, and all other Officers of the United States.”
John N. Lee (Florida State University)
The Executive
Summer 2010
7 / 20
Executive Power
“The Executive Power shall be vested in a President.”
Two points of view on what this means:
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Mere Designation View suggests that the above sentence summaries
powers listed later on in Article II.
General Grant of Power View suggests that as long as the
constitution or congress have not restricted the president, they have
the powers within Article II as well as any other power they need to run
the nation.
In Re Neagle (1890) President authorizes protection for court Justice
who had been threatened. Neagle (the Justices protection) kills
someone while on duty. Supreme Court rules that President can make
this authorization even though it is not explicitly in the Constitution.
John N. Lee (Florida State University)
The Executive
Summer 2010
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Executive Power:
How far does the General Grant of Power go?
Unitary Executive:
General Grant of Power on Steroids.
“when a President claims prerogative to attach signing statements to
bills and asserts their right to modify implementation or ignore
altogether provisions of a new law that encroaches on their
constitutional prerogatives as ‘the chief executor (KGK, )”’
John N. Lee (Florida State University)
The Executive
Summer 2010
9 / 20
Limits on Executive Power:
1
Congressional Limit President cannot act against the will of
congress.
Youngstown Sheet and Tube Company v. Sawyer (1952) United
States at war with Korea. Workers at steel mill threaten to go on strike
and shut mill down. Truman seizes plant and keeps it running to
support war effort. Supreme Court strikes down action on the grounds
that Congress had not authorized it (Taft-Hartley Act).
2
President must enforce laws on the book.
John N. Lee (Florida State University)
The Executive
Summer 2010
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Veto Power:
If a bill is passed the President has three options:
1
Sign it (it becomes law)
Signing Statement − “A statement issued by the President that is
intended to modify implementation of a new law (KGK, ).”
2
3
Veto it (Congress can override with
Do nothing
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2
2
3
vote).
If after ten days the Congress is in session and the President has not
signed the bill it becomes law by default.
If after ten days the Congress is out of session and the President has
not signed the bill it is vetoed. This is called a Pocket Veto.
John N. Lee (Florida State University)
The Executive
Summer 2010
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Line Item Veto
Line Item Veto Act (1996) − Gave President authority to remove
some tax and spending benefits of legislative after the bill was signed
into law. Bill was designed to remove pork-barrel legislation.
Pork Barrel Legislation “legislation that provides members of
Congress with federal projects and programs for their individual
districts (KGK, 790).”
Clinton v. City of New York (1988) − Supreme Court strikes
down the Line Item Veto Act as unconstitutional.
John N. Lee (Florida State University)
The Executive
Summer 2010
12 / 20
The Power to Appoint Executive Officers
Two types of Executive Officials:
Principal Officials − Must be appointed by the President and
approved by the Senate.
Inferior Officials − Can be appointed through some other procedure
approved by Congress.
Buckley v. Valeo (1976) − Congress creates FEC and created
congressional committee to control the agency. Supreme Court rules
that the leaders of the FEC were principal officials and thus had to be
appointed by the President and approved by the Senate.
John N. Lee (Florida State University)
The Executive
Summer 2010
13 / 20
The Power to Remove Executive Officials
No set guidelines in the constitution.
Two points of view:
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2
Let the President remove without congressional approval. The logic
behind this argument is the President needs to be able to remove those
who do not meet/prevent his goals.
The President needs congressional approval to remove. The logic
behind this argument is, if the Senate is required to appoint the
officials then they should be required to remove.
Myers v. United States (1926) − President tries to fire
postmaster. Supreme Court rules that this action is constitutional.
Humphrey’s Executor v. United States (1935) − President tries
to change head of FTC. Supreme Court rules this unconstitutional.
The ruling argues that the President can only remove those
individuals who serve purely executive jobs.
John N. Lee (Florida State University)
The Executive
Summer 2010
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Executive Privilege
Not explicitly in constitution.
Generally accepted that Congress cannot compel the President to
testify.
Executive privilege claims rarely succeed unless it involves a
military/security issue.
United States v. Nixon (1974) − Nixon tapes himself talking about
criminal actions. Supreme Court ruled that Nixon was not protected
by executive privilege, that the interest of the public outweighed.
John N. Lee (Florida State University)
The Executive
Summer 2010
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Executive Immunity
President cannot be sued.
Mississippi v. Johnson (1867) − Mississippi sues President to
prevent him from enforcing law. Supreme Court rules that President
cannot be sued.
Georgia v. Stanton (1868) − While the President cannot be sued,
members of his executive administration can be sued.
Nixon v. Fitzgerald (1982) − Ruled the President cannot be sued
after he leaves office.
Clinton v. Jones (1997) − Ruled that the President can be sued
while in office for actions undertaken before he was President.
John N. Lee (Florida State University)
The Executive
Summer 2010
16 / 20
The Power to Pardon
The President “shall have Power to grant Reprieves and Pardons for
Offenses against the United States, except in Cases of Impeachment.”
Pardon − erases the penalties imposed on an individual for a crime in
the United States.
Ex Parte Grossman (1925) − Ruled that the President has the
power to pardon someone for judicial contempt.
Murphey v. Ford (1975) − Ruled that the president can pardon
individuals for crimes they have not been indicted of yet.
John N. Lee (Florida State University)
The Executive
Summer 2010
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The Legislative President
Unified Government − Same political party controls both the
executive and legislative branches of government.
Divided Government − Different political parties control the
executive and legislative branches of government.
Example: Democrats control congress and Republicans control the
Presidency.
John N. Lee (Florida State University)
The Executive
Summer 2010
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Divide Government
Gridlock − “government accomplishes little and may even come to a
halt (KGK, 339).”
Going Public −
Presidential strategy to get legislation passed.
When the President engages “in intensive public relations to promote
the president’s policies to the voters and thereby induce cooperation
from other elected officeholders in Washington (KGK, 344).”
John N. Lee (Florida State University)
The Executive
Summer 2010
19 / 20
Executive Orders
Executive Order − “A presidential directive to an executive agency
establishing new policies or indicating how an existing policy is to be
carried out (KGK, 785).”
Executive Orders have force of law until:
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2
3
Congress eliminates it.
The President retracts it.
The Supreme Court rules against it.
John N. Lee (Florida State University)
The Executive
Summer 2010
20 / 20
Executive Orders
Executive Orders start being published daily in 1907. Since then
13,500+ executive orders have been written.
Why Executive Orders?
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Enforce existing laws.
Take Care Clause − “The provision of Article II, Section 3, of the
Constitution instructing the President to ’take care that the laws be
faithfully executed (KGK, 793).’ ”
John N. Lee (Florida State University)
The Executive
Summer 2010
21 / 20